Fentanyl lawsuit filed prior to 2008 recall

Here’s a fentanyl lawsuit that predates the 2008 recall. In this case, the lawsuit was filed over a death that occurred in 2004. I’m going to dig a little and see if I can find out how this Duragesic lawsuit turned out.

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, INC., a corporation, (hereinafter “JANSSEN”) states as follows:

1. On or before March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL, deceased, was a resident of the State of Illinois.

2. On or before March 16, 2004, and at all times relevant, JANSSEN was a corporation doing business in Illinois through the sale and distribution of its pharmaceutical products.

3. On or before March 16, 2004, and at all times relevant, JANSSEN was headquartered at 1125 Trenton-Harbourton Road, Post Office Box 200, Titusville, New Jersey 08560.

4. On or before March 16, 2004, and at all times relevant, JANSSEN was in the business of selling, developing, manufacturing, distributing, packaging, labeling, advertising, promoting, and/or marketing certain medicines and drugs, including Fentanyl, which it distributed through its dealer network throughout Illinois.

5. On and before March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL was under the care and treatment of Dr. Mauricio Morales, a licensed physician engaged in the practice of his profession, for chronic back pain.

6. That as part of the aforesaid care and treatment, said physician prescribed Fentanyl, which is received by the patient through the skin via a Duragesic patch (hereinafter “Fentanyl patch”).

8. That on or prior to March 16, 2004, KATHRYN MONTCLAIR-BOHL purchased the fentanyl patch and began using it.

9. The membrane on the patch failed and was broken causing a complete failure in the control of dosage of fentanyl received by KATHRYN MONTCLAIR-BOHL.

10. This failure of the fentanyl patch membrane resulted in an overdosing of KATHRYN MONTCLAIR-BOHL.

11. An autopsy was performed on March 16, 2004 by the Office of the Coroner of Will County, Illinois whereupon the opinion was set forth that the cause of death of KATHRYN MONTCLAIR-BOHL was Fentanyl Intoxication.

12. At all times relevant, it was the duty of JANSSEN to use reasonable care in the design, modification, manufacture, distribution, marketing, packaging and/or sale of the fentanyl patch.

13. On March 16, 2004, and at all times relevant, JANSSEN breached its duty and was guilty of one or more of the following negligent acts and/or omissions:

a. Failed to exercise due care in designing, developing and manufacturing the fentanyl patch so as to avoid the overdose of a patient, including the Decedent;

b. Failed to include adequate warnings with the fentanyl patch that would have alerted the Decedent and other consumers, as well as their prescribing physicians, to the potential risks and serious side effects which included but are not limited to death;

c. Failed to adequately and properly test the fentanyl patch before placing them on the market;

d. Failed to conduct sufficient testing on the fentanyl patch, which if properly performed, would have shown that it had a serious design flaw which would and did lead to overdosing and death;

e. Failed to adequately warn the Decedent and her physician that use of the fentanyl patch carried a risk of an overdose and death; and

f. Failed to provide adequate post-marketing warnings and/or instructions concerning the risk of overdose and death after Defendant knew or should have known of the significant risk of overdose and death caused by use of the fentanyl patch.

14. That as a proximate result of one or more of the aforesaid negligent acts or omissions by JANSSEN, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

15. RICHARD MONTCLAIR attaches as Exhibit “A”

the order appointing RICHARD MONTCLAIR Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased.

16. That as a proximate result of the aforesaid defective and unreasonably dangerous condition in the fentanyl patch, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN in an amount of money in excess of $50,000, together with the costs of this action.

COUNT II

(Implied Breach of Warranty: Janssen Pharmaceutica, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant, JANSSEN PHARMACEUTICA, INC., a corporation, (hereinafter “JANSSEN”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count I as and for paragraphs 1 through 15 of Count II.

16. On and prior to March 16, 2004, and at all times relevant, JANSSEN impliedly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

17. On and prior to March 16, 2004, and at all times relevant, JANSSEN breached the implied warranty of merchantability in that the fentanyl patch was not of merchantable quality.

18. That as a proximate result of JANSSEN's breach of the implied warranties, KATHRYN MONTCLAIR-BOHL suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN in an amount of money in excess of $50,000, together with the costs of this action.

COUNT III

(Express Breach of Warranty: Janssen Pharmaceutica, Inc.)

NOW COMES the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, INC., a corporation, (hereinafter “JANSSEN”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count I as and for paragraphs 1 through 15 of Count III.

16. On and prior to March 16, 2004, and at all times relevant, JANSSEN expressly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

17. On and prior to March 16, 2004, and at all times relevant, JANSSEN breached the expressed warranty of merchantability in that the fentanyl patch was not of merchantable quality.

18. That as a proximate result of JANSSEN's breach of the expressed warranties, KATHRYN MONTCLAIR-BOHL, suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN in an amount of money in excess of $50,000, together with the costs of this action.

COUNT IV

(Strict Liability: Janssen Pharmaceutica, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, INC., a corporation, (hereinafter “JANSSEN”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count I as and for paragraphs 1 through 15 of Count IV.

16. On March 16, 2004, at all times relevant, and at the time said fentanyl patch left the control of JANSSEN, the fentanyl patch was defective and unreasonably dangerous in one or more of the following respects:

a. The fentanyl patch was designed, manufactured and/or distributed with defects in design and/or manufacture so that it did not provide an effective and/or safe dose of fentanyl to the patient, including KATHRYN MONTCLAIR-BOHL;

b. The ultimate users of the fentanyl patch, including KATHRYN MONTCLAIR-BOHL, were not adequately and properly warned of the risks of injury or death when using the fentanyl patch in a manner for which it was intended; and

c. That the fentanyl patch could have been made reasonably safe through the use of other feasible alternative designs which were known by and available to the Defendant at the time of manufacture, distribution and sale.

17. That as a proximate result of the aforesaid defective and unreasonably dangerous conditions in the fentanyl patch, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN in an amount of money in excess of $50,000, together with the costs of this action.

COUNT V

(Wrongful Death: Janssen Pharmaceutica, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, INC., a corporation, (hereinafter “JANSSEN”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 13 of Count I as and for paragraphs 1 through 13 of Count V.

16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, brings this action pursuant to 740 ILCS 180/1, 180/2 and 180/3, commonly referred to as the “Wrongful Death Act.”

17. That KATHRYN MONTCLAIR-BOHL, deceased, left surviving her Richard Montclair, her brother, who suffered personal and pecuniary loss as a result of her death, including the loss of her society, companionship, love and affection.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN in an amount of money in excess of $50,000, together with the costs of this action.

COUNT VI

(Survival Action: Janssen Pharmaceutica, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, INC., a corporation, (hereinafter “JANSSEN”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count I as and for paragraphs 1 through 15 of Count VI.

16. As a direct and proximate result of one or more of the aforesaid negligent acts and/or omissions of the Defendant, KATHRYN MONTCLAIR-BOHL endured pain, suffering, and loss of enjoyment of life and would have been entitled to bring an action for such injuries had she survived.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN in an amount of money in excess of $50,000, together with the costs of this action.

COUNT VII

(Negligence: Janssen Pharmaceutica Products, L.P.)

NOW COMES the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, PRODUCTS, L.P., a corporation, (hereinafter “JANSSEN PRODUCTS”) states as follows:

1. On March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL, deceased, was a resident of the State of Illinois.

2. On March 16, 2004, and at all times relevant, JANSSEN PRODUCTS was a corporation doing business in Illinois through the sale and distribution of its pharmaceutical products.

3. On March 16, 2004, and at all times relevant, JANSSEN PRODUCTS was headquartered at 1125 Trenton-Harbourton Road, Post Office Box 200, Titusville, New Jersey 08560.

4. On March 16, 2004, and at all times relevant, JANSSEN PRODUCTS was in the business of selling, distributing, manufacturing, labeling, advertising, promoting, and/or marketing certain medicines and drugs, including fentanyl, which it distributed through its dealer network throughout Illinois.

5. During and before March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL was under the care and treatment of Dr. Mauricio Morales, a licensed physician engaged in the practice of his profession, for chronic back pain.

6. That as part of the aforesaid care and treatment, said physician prescribed fentanyl, which is received by the patient through the skin via a duragesic patch (hereinafter “fentanyl patch”).

7. This fentanyl patch is manufactured, distributed and/or sold by JANSSEN PRODUCTS.

8. That on or prior to March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL purchased the fentanyl patch and began using it on that day.

9. The membrane on the patch failed and was broken causing a complete failure in the control of dosage of fentanyl received by KATHRYN MONTCLAIR-BOHL.

10. This failure of the fentanyl patch membrane resulted in an overdosing of KATHRYN MONTCLAIR-BOHL.

11. An autopsy was performed on March 16, 2004, by the Office of the Coroner of Will County, Illinois, whereupon the opinion was set forth that the cause of death of KATHRYN MONTCLAIR-BOHL was Fentanyl Intoxication.

12. At all times relevant, it was the duty of JANSSEN PRODUCTS to use reasonable care in the design, modification, manufacture, distribution and/or sale of the fentanyl patch.

13. On March 16, 2004, and at all times relevant, JANSSEN PRODUCTS breached its duty and was guilty of one or more of the following negligent acts and/or omissions:

a. Failed to exercise due care in designing, developing and manufacturing the fentanyl patch so as to avoid the overdose of a patient, including the Decedent;

b. Failed to include adequate warnings with the fentanyl patch that would have alerted the Decedent and other consumers, as well as their prescribing physicians, to the potential risks and serious side effects which included, but are not limited to, death;

c. Failed to adequately and properly test the fentanyl patch before placing them on the market;

d. Failed to conduct sufficient testing on the fentanyl patch, which if properly performed, would have shown that it had a serious design flaw which would and did lead to overdosing and death;

e. Failed to adequately warn the Decedent and her physician that use of the fentanyl patch carried a risk of an overdose and death; and

f. Failed to provide adequate post-marketing warnings and/or instructions concerning the risk of overdose and death after Defendant knew or should have known of the significant risk of overdose and death caused by use of the fentanyl patch.

14. That as a proximate result of one or more of the aforesaid negligent acts or omissions by JANSSEN PRODUCTS, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN PRODUCTS in an amount of money in excess of $50,000, together with the costs of this action.

COUNT VIII

(Implied Breach of Warranty: Janssen Pharmaceutica Products, L.P.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, PRODUCTS, L.P., a corporation, (hereinafter “JANSSEN PRODUCTS”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count VII as and for paragraphs 1 through 15 of Count VIII.

16. On and prior to March 16, 2004, and at all times relevant, JANSSEN PRODUCTS impliedly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

17. On and prior to March 16, 2004, and at all times relevant, JANSSEN PRODUCTS breached the implied warranty of merchantability in that the fentanyl patch was not of merchantable quality.

18. That as a proximate result of JANSSEN PRODUCTS' breach of the implied warranties, KATHRYN MONTCLAIR-BOHL suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN PRODUCTS in an amount of money in excess of $50,000, together with the costs of this action.

COUNT IX

(Express Breach of Warranty: Janssen Pharmaceutica Products, L.P.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, PRODUCTS, L.P., a corporation, (hereinafter “JANSSEN PRODUCTS”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count VII as and for paragraphs 1 through 15 of Count IX.

16. On and prior to March 16, 2004, and at all times relevant, JANSSEN PRODUCTS expressly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

17. On and prior to March 16, 2004, and at all times relevant, JANSSEN PRODUCTS breached the expressed warranty of merchantability in that the fentanyl patch was not of merchantable quality.

18. That as a proximate result of JANSSEN PRODUCTS' breach of the expressed warranties, KATHRYN MONTCLAIR-BOHL suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against defendant JANSSEN PRODUCTS in an amount of money in excess of $50,000, together with the costs of this action.

COUNT X

(Strict Liability: Janssen Pharmaceutica Products, L.P)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, PRODUCTS, L.P., a corporation, (hereinafter “JANSSEN PRODUCTS”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count VII as and for paragraphs 1 through 15 of Count X.

16. On March 16, 2004, at all times relevant, and at the time said fentanyl patch left the control of JANSSEN PRODUCTS, the fentanyl patch was defective and unreasonably dangerous in one or more of the following respects:

a. The fentanyl patch was designed, manufactured and distributed with defects in design and manufacture so that it did not provide an effective and/or safe dose of fentanyl to the patient, including KATHRYN MONTCLAIR-BOHL;

b. The ultimate users of the fentanyl patch, including KATHRYN MONTCLAIR-BOHL, were not adequately and properly warned of the risks of injury or death when using the fentanyl patch in a manner for which it was intended; and

c. That the fentanyl patch could have been made reasonably safe through the use of other feasible alternative designs which were known by and available to the Defendant at the time of manufacture, distribution and sale.

17. That as a proximate result of the aforesaid defective and unreasonably dangerous condition in the fentanyl patch, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JANSSEN PRODUCTS in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XI

(Wrongful Death: Janssen Pharmaceutica Products, L.P)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, PRODUCTS, L.P., a corporation, (hereinafter “JANSSEN PRODUCTS”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count VII as and for paragraphs 1 through 15 of Count XI.

16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, brings this action pursuant to 740 ILCS 180/1, 180/2 and 180/3, commonly referred to as the “Wrongful Death Act.”

17. That KATHRYN MONTCLAIR-BOHL, deceased, left surviving her, Richard Montclair, her brother, who suffered personal and pecuniary loss as a result of her death, including loss of her society, companionship, love and affection.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against defendant JANSSEN PRODUCTS in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XII

(Survival Action: Janssen Pharmaceutica Products, L.P)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JANSSEN PHARMACEUTICA, PRODUCTS, L.P., a corporation, (hereinafter “JANSSEN PRODUCTS”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count VII as and for paragraphs 1 through 15 of Count XII.

16. As a direct and proximate result of one or more of the aforesaid negligent acts and/or omissions of the Defendant, KATHRYN MONTCLAIR-BOHL endured pain, suffering and loss of enjoyment of life and would have been entitled to bring an action for such injuries had she survived.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant, JANSSEN PRODUCTS, in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XIII

(Negligence: Johnson & Johnson, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant, JOHNSON & JOHNSON, INC., a corporation, (hereinafter “JOHNSON & JOHNSON”) states as follows:

1. On March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL, deceased, was a resident of the State of Illinois.

2. On March 16, 2004, and at all times relevant, JOHNSON & JOHNSON was the parent corporation of Janssen Pharmaceutica, Inc. and Janssen Pharmaceutica Products, L.P. and is a corporation doing business in Illinois through the sale and distribution of its pharmaceutical products.

3. On March 16, 2004, and at all times relevant, JOHNSON & JOHNSON was headquartered at One Johnson & Johnson Plaza, New Brunswick, New Jersey 08933.

4. On March 16, 2004, and at all times relevant, JOHNSON & JOHNSON was in the business of selling, distributing, manufacturing, labeling, advertising, promoting, and/or marketing certain medicines and drugs, including fentanyl, which it distributed through its dealer network throughout Illinois.

5. During and before March 16, 2004, KATHRYN MONTCLAIR-BOHL was under the care and treatment of Dr. Mauricio Morales, a licensed physician engaged in the practice of his profession, for chronic back pain

6. That as part of the aforesaid care and treatment, said physician prescribed fentanyl, which is received by the patient through the skin via a duragesic patch (hereinafter “fentanyl patch”).

7. This fentanyl patch is manufactured, distributed and/or sold by JOHNSON & JOHNSON.

8. That on or prior to March 16, 2004, KATHRYN MONTCLAIR-BOHL purchased the fentanyl patch and began using it on that day.

9. The membrane on the patch failed and was broken causing a complete failure in the control of dosage of fentanyl received by KATHRYN MONTCLAIR-BOHL.

10. This failure of the fentanyl patch membrane resulted in an overdosing of KATHRYN MONTCLAIR-BOHL.

11. An autopsy was performed on March 16, 2004, by the Office of the Coroner of Will County, Illinois whereupon the opinion was set forth that the cause of death of KATHRYN MONTCLAIR-BOHL was Fentanyl Intoxication.

12. At all times relevant, it was the duty of JOHNSON & JOHNSON to use reasonable care in the design, modification, manufacture, distribution and/or sale of the fentanyl patch.

13. On March 16, 2004, and at all times relevant, JOHNSON & JOHNSON breached its duty and was guilty of one or more of the following negligent acts and/or omissions:

a. Failed to exercise due care in designing, developing and manufacturing the fentanyl patch so as to avoid the overdose of a patient, including the Decedent;

b. Failed to include adequate warnings with the fentanyl patch that would have alerted the Decedent and other consumers, as well as their prescribing physicians, to the potential risks and serious side effects which included but are not limited to death;

c. Failed to adequately and properly test the fentanyl patch before placing them on the market;

d. Failed to conduct sufficient testing on the fentanyl patch, which if properly performed, would have shown that it had a serious design flaw which would and did lead to overdosing and death;

e. Failed to adequately warn the Decedent and her physician that use of the fentanyl patch carried a risk of an overdose and death; and

f. Failed to provide adequate post-marketing warnings and/or instructions concerning the risk of overdose and death after Defendant knew or should have known of the significant risk of overdose and death caused by use of the fentanyl patch.

14. That as a proximate result of one or more of the aforesaid negligent acts or omissions by JOHNSON & JOHNSON, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JOHNSON & JOHNSON in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XIV

(Implied Breach of Warranty: Johnson & Johnson, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JOHNSON & JOHNSON, INC., a corporation, (hereinafter “JOHNSON & JOHNSON”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count XIII as and for paragraphs 1 through 15 of Count XIV

16. On and prior to March 16, 2004, and at all times relevant, JOHNSON & JOHNSON impliedly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

17. On and prior to March 16, 2004, and at all times relevant, JOHNSON & JOHNSON breached the implied warranty of merchantability in that the fentanyl patch was not of merchantable quality.

18. That as a proximate result of JOHNSON & JOHNSON's breach of the implied warranties, KATHRYN MONTCLAIR-BOHL, suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against defendant JOHNSON & JOHNSON in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XV

(Express Breach of Warranty: Johnson & Johnson, Inc.)

NOW COMES the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JOHNSON & JOHNSON, INC., a corporation, (hereinafter “JOHNSON & JOHNSON”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count XIII as and for paragraphs 1 through 15 of Count XV.

16. On and prior to March 16, 2004, and at all times relevant, JOHNSON & JOHNSON expressly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

17. On and prior to March 16, 2004, and at all times relevant, JOHNSON & JOHNSON breached the expressed warranty of merchantability in that the fentanyl patch was not of merchantable quality.

18. That as a proximate result of JOHNSON & JOHNSON's breach of the expressed warranties, KATHRYN MONTCLAIR-BOHL suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against defendant JOHNSON & JOHNSON in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XVI

(Strict Liability: Johnson & Johnson, Inc.)

NOW COMES the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JOHNSON & JOHNSON, INC., a corporation, (hereinafter “JOHNSON & JOHNSON”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count XIII as and for paragraphs 1 through 15 of Count XVI.

16. On and before March 16, 2004, at all times relevant, and at the time said fentanyl patch left the control of JOHNSON & JOHNSON, the fentanyl patch was defective and unreasonably dangerous in one or more of the following respects:

a. The fentanyl patch was designed, manufactured and distributed with defects in design and manufacture so that it did not provide an effective and/or safe dose of fentanyl to the patient, including KATHRYN MONTCLAIR-BOHL;

b. The ultimate users of the fentanyl patch, including KATHRYN MONTCLAIR-BOHL, were not adequately and properly warned of the risks of injury or death when using the fentanyl patch in a manner for which it was intended; and

c. That the fentanyl patch could have been made reasonably safe through the use of other feasible alternative designs which were known by and available to the Defendant at the time of manufacture, distribution and sale.

17. That as a proximate result of the aforesaid defective and unreasonably dangerous condition in the fentanyl patch, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JOHNSON & JOHNSON in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XVII

(Wrongful Death: Johnson & Johnson, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JOHNSON & JOHNSON, INC., a corporation, (hereinafter “JOHNSON & JOHNSON”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count XIII as and for paragraphs 1 through 15 of Count XVII.

16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, brings this action pursuant to 740 ILCS 180/1, 180/2 and 180/3, commonly referred to as the “Wrongful Death Act.”

17. That KATHRYN MONTCLAIR-BOHL, deceased, left surviving her Richard Montclair, her brother, who suffered personal and pecuniary loss as a result of her death, including loss of her society, companionship, love and affection.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JOHNSON & JOHNSON in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XVIII

(Survival Act: Johnson & Johnson, Inc.)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant JOHNSON & JOHNSON, INC., a corporation, (hereinafter “JOHNSON & JOHNSON”) states as follows:

1-15. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 15 of Count XIII as and for paragraphs 1 through 15 of Count XVIII.

16. As a direct and proximate result of one or more of the aforesaid negligent acts and/or omissions of the Defendant, KATHRYN MONTCLAIR-BOHL endured pain and suffering and loss of enjoyment of life and would have been entitled to bring an action for such injuries had she survived.

WHEREFORE, plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant JOHNSON & JOHNSON in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XIX

(Negligence: ALZA Corporation)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant ALZA CORPORATION, a corporation, (hereinafter “ALZA”) states as follows:

1. On March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL, deceased, was a resident of the State of Illinois.

2. On March 16, 2004, and at all times relevant, ALZA was a corporation doing business in Illinois through the sale and distribution of its pharmaceutical products.

3. On March 16, 2004, and at all times relevant, ALZA was headquartered in Mountain View, California.

4. On March 16, 2004, and at all times relevant, ALZA was in the business of selling, distributing, manufacturing, labeling, advertising, promoting, and/or marketing certain medicines and drugs, including fentanyl, which it distributed through a dealer network throughout Illinois.

5. During and before March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL was under the care and treatment of Dr. Mauricio Morales, a licensed physician engaged in the practice of his profession, for chronic back pain

6. That as part of the aforesaid care and treatment, said physician prescribed fentanyl, which is received by the patient through the skin via a Duragesic patch (hereinafter “fentanyl patch”).

8. That on or prior to March 16, 2004, and at all times relevant, KATHRYN MONTCLAIR-BOHL purchased the fentanyl patch and began using it.

9. The membrane on the patch failed and was broken causing a complete failure in the control of dosage of fentanyl received by KATHRYN MONTCLAIR-BOHL.

10. This failure of the fentanyl patch membrane resulted in an overdosing of KATHRYN MONTCLAIR-BOHL.

11. An autopsy was performed on March 16, 2004 by the Office of the Coroner of Will County, Illinois, whereupon the opinion was set forth that the cause of death of KATHRYN MONTCLAIR-BOHL was Fentanyl Intoxication.

13. At all times relevant, it was the duty of ALZA to use reasonable care in the design, modification, manufacture, distribution, marketing, promotion, packaging, labeling and/or sale of the fentanyl patch.

14. On March 16, 2004, and at all times relevant, ALZA breached its duty and was guilty of one or more of the following negligent acts and/or omissions:

a. Failed to exercise due care in designing, developing and manufacturing the fentanyl patch so as to avoid the overdose of a patient, including the Decedent;

b. Failed to include adequate warnings with the fentanyl patch that would have alerted the Decedent and other consumers, as well as their prescribing physicians, to the potential risks and serious side effects which included but are not limited to death;

c. Failed to adequately and properly test the fentanyl patch before placing them on the market;

d. Failed to conduct sufficient testing on the fentanyl patch, which if properly performed, would have shown that it had a serious design flaw which would and did lead to overdosing and death;

e. Failed to adequately warn the Decedent and her physician that use of the fentanyl patch carried a risk of an overdose and death; and

f. Failed to provide adequate post-marketing warnings and/or instructions concerning the risk of overdose and death after Defendant knew or should have known of the significant risk of overdose and death caused by use of the fentanyl patch.

15. That as a proximate result of one or more of the aforesaid negligent acts or omissions by ALZA, KATHRYN MONTCLAIR-BOHL died on March 16, 2004.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant ALZA in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XX

(Implied Breach of Warranty: ALZA Corporation)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant, ALZA CORPORATION, a corporation, (hereinafter “ALZA”) states as follows:

1-16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 16 of Count XIX as and for paragraphs 1 through 16 of Count XX.

17. On and prior to March 16, 2004, and at all times relevant, ALZA impliedly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

18. On and prior to March 16, 2004, ALZA breached the implied warranty of merchantability in that the fentanyl patch was not of merchantable quality.

19. That as a proximate result of ALZA's breach of the implied warranties, KATHRYN MONTCLAIR-BOHL suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant ALZA in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XXI

(Express Breach of Warranty: ALZA Corporation)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant, ALZA CORPORATION, a corporation, (hereinafter “ALZA”) states as follows:

1-16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 16 of Count XIX as and for paragraphs 1 through 16 of Count XXI.

17. On and prior to March 16, 2004, and at all times relevant, ALZA expressly warranted that the fentanyl patch was of merchantable quality pursuant to all applicable provisions of the Uniform Commercial Code.

18. On and prior to March 16, 2004, and at all times relevant, ALZA breached the expressed warranty of merchantability in that the fentanyl patch was not of merchantable quality.

19. That as a proximate result of ALZA's breach of the expressed warranties, KATHRYN MONTCLAIR-BOHL suffered permanent and severe injuries including death.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant ALZA in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XXII

(Strict Liability: ALZA Corporation)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant ALZA CORPORATION, a corporation, (hereinafter “ALZA”) states as follows:

1-16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 16 of Count XIX as and for paragraphs 1 through 16 of Count XXII.

17. On March 16, 2004, at all times relevant, and at the time said fentanyl patch left the control of ALZA, the fentanyl patch was defective and unreasonably dangerous in one or more of the following respects:

a. The fentanyl patch was designed, manufactured and distributed with defects in design and manufacture so that it did not provide an effective and/or safe dose of fentanyl to the patient, including KATHRYN MONTCLAIR-BOHL;

b. The ultimate users of the fentanyl patch, including KATHRYN MONTCLAIR-BOHL, were not adequately and properly warned of the risks of injury or death when using the fentanyl patch in a manner for which it was intended; and

c. That the fentanyl patch could have been made reasonably safe through the use of other feasible alternative designs which were known by and available to the Defendant at the time of manufacture, distribution and sale.

18. That as a proximate result of the aforesaid defective and unreasonably dangerous condition in the fentanyl patch, KATHRYN MONTCLAIR-BOHN died on M arch 16, 2004.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant ALZA in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XXIII

(Wrongful Death: ALZA Corporation)

NOW COMES the Plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant, ALZA CORPORATION, a corporation, (hereinafter “ALZA”) states as follows:

1-16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 16 of Count XIX as and for paragraphs 1 through 16 of Count XXIII.

17. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, brings this action pursuant to 740 ILCS 180/1, 180/2 and 180/3, commonly referred to as the “Wrongful Death Act.”

18. KATHRYN MONTCLAIR-BOHL, deceased, left surviving her Richard Montclair, her brother, who suffered personal and pecuniary loss as a result of her death, including loss of her society, companionship, love and affection.

WHEREFORE, the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant ALZA in an amount of money in excess of $50,000, together with the costs of this action.

COUNT XXIV

(Survival Act: ALZA Corporation)

NOW COMES the Plaintiff, RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, by and through his attorneys, SALVI, SCHOSTOK & PRITCHARD P.C., and complaining of the Defendant, ALZA CORPORATION, a corporation, (hereinafter “ALZA”) states as follows:

1-16. RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, restates and incorporates by reference paragraphs 1 through 16 of Count XIX as and for paragraphs 1 through 16 of Count XXIV.

17. As a direct and proximate result of one or more of the aforesaid negligent acts and/or omissions of the Defendant, KATHRYN MONTCLAIR-BOHL endured pain, suffering and loss of enjoyment of life and would have been entitled to bring an action for such injuries had she survived.

WHEREFORE, plaintiff RICHARD MONTCLAIR, Independent Administrator of the Estate of KATHRYN MONTCLAIR-BOHL, deceased, demands judgment against Defendant, ALZA in an amount of money in excess of $50,000, together with the costs of this action.

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This blog chronicles legal and scientific news relating to personal injuries caused by defective drugs and medical devices. It is published by injury lawyer Justinian C. Lane, an attorney who takes a personal interest in each of his clients’ cases.

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Justinian Lane

Justinian C. Lane is a personal injury attorney who focuses his practice on helping individuals injured by prescription drugs and medical devices. His practice is nationwide and he welcomes e-mails at justinian@dangerousdrugs.us. His full biography is here.